App. Div.]

First Department, November, 1913.

Ocean City Assn. v. Schriver, 64 N. J. Law, 550.) These cases were admitted in evidence.

In the New Jersey Zinc & Iron Co. Case (supra) the court said: "A person acquiring title to land abutting on a navigable stream takes title only to the high water line, and that line is limited by the outflow of the medium high tide between the spring and neap tides." And in Ocean City Assn. v. Schriver (supra) the court said: "The cases and text books have so uniformly adopted the principle that the line of ordinary high tide at the time of the conveyance 'governs and decides the question as between vendor and vendee' that further citation is unnecessary."

The surveyor whose survey was in question in the case at bar was not put upon the stand by the defendant to explain or justify his measurements. The plaintiff produced a number of witnesses and established the ordinary high-water mark as of the time of the conveyance, and in conformity with his claim, by satisfactory and preponderating evidence. The determination of this line, and, consequently, the actual amount of upland conveyed was, under the pleadings and upon the proof, for the jury. The jury resolved the question, as it seems to us, in accordance with the evidence and the weight thereof, in favor of the plaintiff. We have examined all of the questions argued and submitted by counsel but find no reason to disturb this judgment.

The judgment and order should, therefore, be affirmed, with costs and disbursements to the respondent.

INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and SCOTT, JJ., concurred.

Judgment and order affirmed, with costs.

APP. DIV.-VOL. CLIX.

15

First Department, November, 1913.

[Vol. 159.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHRISTOPHER KENEHAN, Respondent, v. THOMAS J. HIGGINS, as Commissioner of Parks, Borough of the Bronx, City of New York, Appellant.

First Department, November 21, 1913.

Municipal corporations — park department, city of New York—abolition of office by failure of municipal authorities to make appropriation-refusal to accept newly-created position — waiver.

Where the board of estimate and apportionment and the board of aldermen of the city of New York refused to make any appropriation for the position of "foreman wheelwright" in the park department held by an honorably discharged fireman, so that the position was practically abolished, and created a new position called "additional wheelwright" to which the incumbent of the former office declined to accept an appointment, he waived any right to appointment to the position of wheelwright, and mandamus does not lie to compel his reinstatement.

APPEAL by the respondent, Thomas J. Higgins, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, granting relator's motion for a peremptory writ of mandamus.

William E. C. Mayer, for the appellant.

Alfred J. Talley, for the respondent.

SCOTT, J.:

The relator, an honorably discharged fireman, held the position of foreman wheelwright in the park department, borough of the Bronx, until the end of the year 1912, there being only one such position in the department. The board of estimate and apportionment and the board of aldermen, in making up the budget for the year 1913, refused to include any appropriation for the position of "foreman wheelwright," but did provide for an "additional wheelwright." This was equivalent to abolishing the position held by relator and creating a new position in place thereof, and relator's removal from the position of foreman wheelwright was distinctly placed upon the ground that the budget failed to include any funds to pay such an

First Department, November, 1913.

App. Div.] employee. The respondent immediately appointed relator to the position of additional wheelwright which was provided for by the budget, but he declined to accept the appointment and never reported for duty under it. He did, however, request that his name be certified to the municipal civil service commission to be placed on the preferred list of foreman of wheelwrights. This was done. His demand for reinstatement, served as a preliminary to commencing this proceeding, was that he should be restored to the position of foreman wheelwright. His demand in his petition for a writ of mandamus is that he be reinstated in the position of "wheelwright or foreman wheelwright," while the order appealed from directs his reinstatement to the position of "wheelwright" or "to such other position as he may be fitted to fill."

The relator has clearly debarred himself from any right to be reinstated. He could not be reinstated to the postion of foreman wheelwright because no appropriation has been made for that position and it was virtually abolished. In offering him an appointment as wheelwright the defendant did all that he was legally bound to do, and indeed all that he could do. The relator deliberately refused to accept that appointment, electing to preserve his grade as foreman wheelwright and, as such, to be placed upon the preferred list. He thereby waived any right he may have had to be appointed wheelwright. The defendant evidently acted in the most perfect good faith, even to the extent of trying to induce the board of estimate and apportionment and the board of aldermen to re-establish the position of foreman wheelwright. The relator having waived his rights is not entitled to a mandamus.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a writ of mandamus denied.

INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

First Department, November, 1913.

[Vol. 159.

In the Matter of the Application of BRIDGET DONOVAN, Judgment Creditor, for an Order for the Examination of EDWARD F. DONOVAN, Judgment Debtor, in Proceedings Supplementary to Execution.

BRIDGET DONOVAN, Respondent; EDWARD F. DONOVAN, Appellant.

First Department, November 21, 1913.

Husband and wife

separation

failure to pay alimony - supplementary proceedings.

A wife who has obtained a final decree of separation from her husband, awarding her alimony, and has failed to collect the same by contempt proceedings, may docket a judgment for the amount due. After an execution thereon has been returned unsatisfied, she is entitled to an order for the examination of her husband in proceedings supplementary to execution.

APPEAL by Edward F. Donovan, judgment debtor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1913, denying his motion to vacate an order for his examination in proceedings supplementary to execution.

Jacob Landy of counsel [Isaac N. Miller, attorney], for the appellant.

Max Horowitz of counsel [Goldsmith, Rosenthal, Mork & Baum, attorneys], for the respondent.

CLARKE, J.:

Bridget Donovan obtained a final decree of separation from her husband, Edward F. Donovan, on December 17, 1909, awarding her twenty-two dollars a week alimony. The defendant paid the alimony as required down to February 1, 1912. Plaintiff thereafter made a motion to punish defendant for contempt for non-payment and an order was made committing him to the county jail, where he was incarcerated for three months, when he was released. No further payment of said alimony has been made down to the present date.

App. Div.]

First Department, November, 1913.

On March 19, 1913, there was due and owing $1,353.29 alimony with interest thereon. On March 27, 1913, judgment was duly docketed for said amount by the clerk upon an order of the court made upon due notice. Subsequently an execution was issued, which execution was returned wholly unsatisfied. On May 12, 1913, an order was granted requiring the defendant to appear and be examined in proceedings supplementary to execution. On the return day the defendant failed to appear personally, but was represented by counsel who interposed objections challenging the jurisdiction of the court. The contention was that the order for the examination of the defendant was improperly issued, on the theory that the order was not in compliance with section 2458 of the Code of Civil Procedure in that the judgment entered on the 27th of March, 1913, was granted upon a motion and not upon the personal service of the summons and complaint. The court suggested that an application be made at Special Term, Part I, upon notice, to vacate the order, which was done, and from the order denying that motion this appeal is taken.

The judgment creditor has followed the method pointed out by Mr. Justice SCOTT in Thayer v. Thayer (145 App. Div. 268), which presented a similar state of facts down to the docketing of the judgment. The right to docket a judgment for unpaid alimony, upon the facts here presented cannot be questioned in this court.

The sole point raised is that the proceedings for examination supplementary to execution are statutory, unknown to the common law and require technical conformity to the statute. That as section 2458 of the Code provides: "In order to entitle a judgment creditor to maintain either of the special proceedings authorized by this article [supplementary proceedings before or after return of execution] the judgment must have been rendered upon the judgment debtor's appearance or personal service of the summons upon him, for a sum not less than twenty-five dollars or substituted service of the summons upon him," this judgment was not so rendered, but upon motion.

The answer is to be found in the Thayer Case (supra), where this court said: "Such an order is not the rendition of a new judgment for the amount, but merely a means of putting into